African Countries Begin to Bail From the International Criminal Court

A poster depicting former Ivorian president Laurent Gbagbo, currently on trial at the ICC on charges of crimes against humanity. Clara Sanchiz photo via Flickr...

A poster depicting former Ivorian president Laurent Gbagbo, currently on trial at the ICC on charges of crimes against humanity. Clara Sanchiz photo via Flickr

More governments will follow

by PETER DOERRIE

Three African countries — South Africa, Burundi and The Gambia — pulled out of the International Criminal Court in August 2016. They are the first countries to do so since the Rome Statute, the court’s legal basis, entered into force in 2002.

Other African governments are contemplating the same step. Kenya and Namibia could soon withdraw, while Ugandan Pres. Yoweri Museveni called the court “useless” during his latest inauguration. That is one of the nicer things African heads of state have said about the ICC lately.

Gambia’s government called the ICC the “International Caucasian Court” in its announcement that it would withdraw from the institution, referring to a popular allegation that the ICC — established to prosecute international war criminals — singles out Africans for persecution.

Were Gambian Pres. Yahya Jammeh fond of subtle irony, he would surely have been amused by the statement, given that the ICC’s current prosecutor, Fatou Bensouda, was formerly The Gambia’s minister of justice.

Instead, opponents of the court, including Jammeh, point out that nine of the ICC’s 10 formal investigations focused on African conflicts, which indeed seems a bit lopsided, given that there are plenty of war criminals elsewhere in the world. But the situation is more complicated than this simple statistic might suggest.

A campaign cloth for Gambian president Yahya Jammeh. Tommy Miles photo via Flickr

For instance, while the ICC can open a case on its own volition — an important caveat being that country in question must be a signatory to the Rome Statute (unlike, for instance, Syria) — it rarely does so. Other institutions are responsible for the court’s focus on African war criminals.

In fact, of the nine cases involving eight African countries currently before the court, two were referred to the ICC by the U.N. Security Council, while five were opened on the request of African governments. The court’s focus on African cases isn’t so much discrimination against African perpetrators, as it is a service to African victims.

The ICC has only opened two cases itself — involving post-electoral violence in Kenya and Côte d’Ivoire. In the case of Côte d’Ivoire, the government later acknowledged the ICC’s jurisdiction and willingly handed over former president Laurent Gbagbo, who faces charges of being a co-conspirator to murder, rape and other acts during the country’s 2010–2011 political crisis.

The ICC also undertakes “preliminary investigations,” and these are considerably more diverse, involving four African countries out of a total of 10 cases, including an investigation of possible war crimes committed by British troops in Iraq.

So why are African governments giving the ICC the finger? In the case of Burundi, the answer is easy. The country is the focus of a preliminary investigation, centering on the government’s repression of protests in the wake of Pierre Nkurunziza’s unconstitutional third campaign for the presidency.

In turn, The Gambia’s ruthless, hypocritical and homophobic dictator Yahya Jammeh cherishes every opportunity to piss off the international community. “The Gambia’s leader encases his rule in a pan-African, anti-Western veneer,” Stuart Reid wrote at The Atlantic. “But he also portrays himself as a friend of America.”

South Africa’s motivation for leaving the ICC is more complicated. Since bringing about a peaceful end to Apartheid in 1994, South Africa has been a widely lauded champion of human rights. But it is also a budding regional power aiming for greater influence on the continent — and a permanent seat on the U.N. Security Council.

This can lead to some awkward situations, as when Sudan’s president Omar Al Bashir, technically a fugitive due to his outstanding arrest warrant for crimes committed by his forces in Darfur, turned up to an African Union summit in Johannesburg in 2015.

As a signatory to the Rome Statute, South African Pres. Jacob Zuma’s was obligated to arrest Al Bashir and surrender him to the ICC. However, when South Africa’s opposition lodged a motion with the supreme court to force Zuma’s hand, Al Bashir quietly slipped out of the country.

The court later found that Zuma had ignored his constitutional duties, leading to domestic and international embarrassment.

Both Uganda and Ethiopia have turned critical of the court, at a time when the two nations have developed stronger regional ambitions and experienced increasing internal unrest. The ICC, it seems, isn’t so much a racist institution, as much as it has outlived its usefulness to Africa’s political elite.

So does the exodus of African governments actually matter, both for the court and the countries leaving it? Certainly. But it is highly unlikely that the existence of the court itself is in danger.

Once founded, international institutions have a tendency to stick around. As long as no one comes up with an alternative that would do more or less the same thing as the ICC, the court is here to stay.

Of course, the ICC will lose jurisdiction for some countries, but that isn’t as bad as it sounds. First of all, withdrawals from the court only become valid one year after a former member state files an official “instrument of withdrawal.”

While the corresponding rules have never been tested in court, it is likely that as long as an official case is opened before the withdrawal becomes effective, the court maintains jurisdiction. So Burundi’s Nkurunziza won’t escape justice … if Bensouda indeed decides to bring a case.

The ICC will also continue to take up cases concerning non-members as long as these have been referred to it by the U.N. Security Council. And as the cases of Palestine and Côte d’Ivoire demonstrate, future governments could rejoin the court and give it jurisdiction over past crimes.

But most importantly, the court’s effectiveness in deterring war crimes and crimes against humanity has been questioned anyway. One study found some evidence for the ICC’s effectiveness in reducing violence committed by state actors, while non-state forces seemed to be undeterred by the wrath of international criminal justice.

The likely explanation is that rebels and government forces have complicated incentives to commit violence and crimes, and that in extreme situations such as civil war, a regime’s short-term political survival overrides long-term considerations — such as facing a tribunal in The Netherlands.

At least, as long as the tribunal relies on the political whims of nation states — as is the case right now — to refer cases and execute warrants.

The ICC thus remains an important institution, but not because of its current effectiveness. Instead, it represents the world’s still-young attempt at constructing a system of international accountability.

As such, the withdrawal of a few governments with dubious, self-serving motives will not fundamentally challenge its development … and might even help to refine its mission and relevance.